A former President of the Nigerian Bar Association (NBA), Dr Olisa Agbakoba SAN, has asked the Independent National Electoral Commission (INEC) to clarify section 134 of the 1999 Constitution (As Amended) which specifies the requirements for a candidate to be declared winner of a presidential election.
Agbakoba made the demand in a letter dated January 17, 2023, addressed to the Chairman of the electoral body, Prof. Mahmood Yakubu.
Section 134 of the 1999 Constitution states:
1) A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election:
(a) he has the majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election:
(a) he has the highest number of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”
Agbakoba explained that his request for clarification on the provision of the section was premised on the seemingly ambiguous nature of the section.
The senior lawyer commended INEC for their “great job to ensure free, fair, verifiable, credible and transparent elections” but added that the clarification was necessary.
He noted that many concerned Nigerians have contacted him in the past days seeking the correct interpretation of Section 134 of the constitution.
Stating that he was a “little worried,” Agbakoba added, “I reviewed section 134 carefully, specifically, subsections 134 (1) (b) and (2) (b), and wondered if “two-thirds of all the States in the federation and the federal capital territory, Abuja” means either of the following:
“a) that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation which means 24 states, the 24 States will include the federal capital territory Abuja as a “state”, or
“b) that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the federation which means 24 states and in addition to meeting the one-quarter requirement in 24 states, a candidate must also win one-quarter of the votes cast in the federal capital territory, Abuja.
“In this sense, a presidential candidate must have one-quarter of the votes cast in the federal capital territory, Abuja, in addition to scoring not less than one-quarter of the votes cast at the election in 24 States of the Federation, to be duly elected.”
Raising important questions that the INEC boss must address, Agbakoba said: “is the requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 States of the Federation; does this mean that the Federal Capital Territory, Abuja is incorporated in the 24 States?
“is the requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 States of the Federation; does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?
“Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 States of the Federation but fails to score one-quarter of the votes cast at the election at the Federal Capital Territory, be duly elected as President of Nigeria?
“Finally, section 134(1)(a) provides that a candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election, the candidate has the majority of votes cast at the election, but section 134(2) provides that a candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election, the candidate has the highest number of votes cast at the election.
“The Constitution describes the winner in two languages. One, the winner must score the majority of votes and the other, the winner must score the highest number of votes.
“This is confusing. To be honest, I am not quite sure of the right answers to my questions. I just thought to bring this to your attention as something you might wish to clarify to the public.”